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The accession of the European Union/European Community to the European Convention on Human Rights

Report | Doc. 11533 | 14 March 2008

Committee
Committee on Legal Affairs and Human Rights
Rapporteur :
Ms Marie-Louise BEMELMANS-VIDEC, Netherlands, EPP/CD
Thesaurus

Summary

The report gives clear backing for European Union (EU) accession to the European Convention on Human Rights (ECHR).

The question has been under discussion for several years and the Assembly has regularly called for such accession.

The report reiterates the arguments for accession, which include greater protection of individuals’ rights, the guarantee of a coherent Europe-wide system of human rights protection, and reinforcement of legal certainty. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed on 13 December 2007 by the heads of state and government of the EU member states, provides a legal basis for EU accession to the ECHR.

Noting that the political will for accession clearly exists within the two organisations and that the legal situation permits it, the report concludes that the declarations of intent must now be given practical effect by speedy EU accession to the ECHR.

The Committee of Ministers and the EU should immediately begin negotiations on the accession instrument. The European Parliament and national parliaments are urged to approve and/or ratify without delay the instruments necessary for accession.

A Draft resolution

1. The Parliamentary Assembly notes with satisfaction that today there is a broad consensus on the question of the accession of the European Union (EU) to the European Convention on Human Rights (ECHR).
2. Calls for this accession have been issued for a long time and on numerous occasions, inter alia, by the Assembly, most recently in its Recommendation 1744 (2006) on “Follow-up to the 3rd Summit: the Council of Europe and the proposed fundamental rights agency of the European Union”.
3. The Council of Europe and the EU reiterated their common resolve to effect this accession when concluding the Memorandum between the Council of Europe and the European Union signed in May 2007; the legal path to accession is already laid out in Protocol No. 14 to the ECHR and was opened once again by the adoption in December 2007 of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community.
4. The Assembly considers that henceforth accession must be the priority in the dialogue between the two organisations.
5. Whereas accession to the ECHR is one of the conditions of entry into the EU listed among the 1993 Copenhagen criteria, the institutions of the EU/European Community (EC) are presently not bound by the ECHR. The fact that the EU member states – all member states of the Council of Europe and parties to the ECHR – have transferred substantial powers to supranational institutions without transmission of the responsibilities accruing from the ECHR conveys a negative message by giving the impression of disparate legal protection.
6. Non-accession has adverse effects on the proper functioning of European justice as it imperils the coherence of the system of human rights safeguards in Europe. As long as the EU has not acceded to the ECHR:
6.1 there will be divergences in human rights standards both at European level (between European institutions) and between the EU and its member states;
6.2 the EU institutions will not come under external judicial supervision where respect for human rights and fundamental freedoms is concerned;
6.3 the coherence of European legal protection will not be fully assured, since the case law of the European Court of Human Rights and the Court of Justice of the European Communities might not be appropriately harmonised;
6.4 European citizens will not have direct access to the European Court of Human Rights when they consider that their fundamental rights have been violated by the European Union’s institutions;
6.5 execution of the judgments of the European Court of Human Rights will remain a difficult undertaking in cases involving EU law.
7. Accession will convey a strong message of a clear commitment to the protection of human rights not only within the boundaries of the EU but also Europe-wide, in keeping with the community of values shared by the Council of Europe and the EU.
8. Accession will also confirm the EU’s essence as a “community based on law” and will strengthen the principle of legal certainty, to the extent that the EU institutions will be subject to the same external review of the conformity of their acts and decisions as are member states.
9. The Assembly considers it high time for the declarations of intent to be carried into effect with the EU’s early accession to the ECHR.
10. In this context, the Assembly questions the expediency of the procedural changes added by the Treaty of Lisbon, which provides that the decision on the agreement on Union accession to the ECHR be adopted by the Council unanimously, only after approval by the European Parliament. These additions may well have the effect of slowing down the accession procedure.
11. The Assembly is convinced that there is no longer any need for delay in opening negotiations on practical questions linked with accession, since there is a clear political will on both sides and a legal framework permitting accession.
12. The Assembly therefore calls upon the governments of the EU member states to apply themselves to this task without delay while adopting a positive, creative approach in order to find workable and effective solutions to the technical and legal questions raised by accession, and calls upon the European Union to expedite the conclusion of the necessary instruments for accession.
13. The Assembly also urges the European Parliament to take timely steps for the prompt approval of the decision on the agreement relating to the accession of the EU to the ECHR.
14. Finally, the Assembly urges the parliaments of all member states to act quickly to ratify the necessary instruments for accession.

B Draft recommendation

The Parliamentary Assembly, recalling its Resolution … (2008) on the accession of the European Union/ European Community to the European Convention on Human Rights, recommends that the Committee of Ministers immediately open negotiations with the European Union on the instrument of accession, on arrangements for accession and on its procedural implications, bearing in mind the specific characteristics of the European Union, so as to ensure the rapid adoption of instruments for accession.

C Explanatory memorandum, by Mrs Marie-Louise Bemelmans-Videc

1 Introduction

1. This report stems from a motion for a resolution (Doc. 11001) tabled by Mr Van Thijn, Mr Kox and others on “The accession of the European Union/European Community to the European Convention on Human Rights”, dated 5 July 2006, appealing to the European Union (EU) to accede, without delay, to the European Convention of Human Rights (ECHR).
2. In April 2007, the rapporteur presented an introductory memorandum which served as a basis for discussions at the hearing held by the Committee on Legal Affairs and Human Rights on 11 September 2007.Note On that occasion the following experts addressed the committee: Mr Francis Jacobs, former Advocate General at the Court of Justice of the European Communities; Mrs Florence Benoît-Rohmer, Professor at the Robert Schuman University (Strasbourg) and Mr Olivier De Schutter, Professor at the Law Faculty of the Catholic University of Leuven and at the College of Europe. In addition, Mr Pieter van Dijk, member of the European Commission for Democracy through Law (Venice Commission) and former judge of the European Court of Human Rights (the Court), transmitted a written contribution to the committee members. All these experts’ particularly informative contributions have been appended to this report.
3. The need for EU accession to the ECHR has been repeatedly advanced by, inter alia, Council of Europe bodies, such as the Secretary General of the Council of EuropeNote and the Parliamentary AssemblyNote as well as the European CommissionNote and the European Parliament.Note Although the proposal for an EU/EC accession to the ECHR dates back to 1979, it has gained increased political momentum over recent years.
4. The declaration, adopted by 46 heads of state and government of the Council of Europe’s member states in Warsaw in May 2005, reiterates the resolve “to create a new framework for enhanced co-operation and interaction between the Council of Europe and the European Union in areas of common concern, in particular human rights, democracy and the rule of law”.Note In this context, the declaration explicitly requests Luxembourg’s Prime Minister, Jean-Claude Juncker, to write, in his personal capacity, “a report on the relationship between the Council of Europe and the European Union, on the basis of the decisions taken at the summit and taking into account the importance of the human dimension of European construction”.Note “The guidelines on the relations between the Council of Europe and the European Union”,Note drawn up and adopted during the summit, urge early accession of the EU to the ECHR.Note Recent reports by the Parliamentary Assembly on the state of human rights and democracy in Europe reiterate that EU accession to the ECHR should be regarded as an urgent priority.Note
5. The draft Treaty establishing a Constitution for Europe (2004) also foresees the accession of the EU to the ECHR in Article I-9, paragraph 2.Note This provision is covered by Article 6 of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (2007).Note

2 Why accession?

6. The key arguments for EU accession to the ECHR are the following:Note
7. Firstly, accession will convey a strong message about the commitment to human rights protection not only within the EU’s borders but on the whole European continent, emphasising the importance of co-operation between the EU and the Council of Europe in seeking to achieve a pan-European identity of shared values without dividing lines, in keeping with the community of values shared by the Council of Europe and the EU.Note As underscored in its final report, the EU Convention’s Working Group II on the EU Charter and accession to the ECHR (EU Working Group II) points out that “accession would give a strong political signal of the coherence between the Union and the ‘greater Europe’, reflected in the [Council of Europe] and its pan-European human rights system”.Note
8. Secondly, EU accession to the ECHR will help rectify discrepancies in human rights standards which currently exist both at the European level (as between European institutions) and as between the EU/EC and individual member states. As a result, ensuring consistency in human rights protection in Europe is of crucial importance.Note This concern was amply acknowledged in the Memorandum of Understanding concluded in May 2007 between the Council of Europe and the European Union, which provides that “Early accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms would contribute greatly to coherence in the field of human rights in Europe”.Note
9. At the European level, and in the context of the establishment of the EU Agency for Fundamental Rights, the Parliamentary Assembly considered that “the political will impelling the proposals for the agency should be employed to give new impetus towards EU accession to the ECHR, which would be the most important step in ensuring that the EU acts with full respect for human rights”.Note
10. At present, all EU member states are subject to the ECHR because they are also member states of the Council of Europe. However, the supra-national institutions to which they have transferred significant competence are themselves not contracting parties to the Convention, creating a considerable gap in the human rights protection system in Europe. Mr van Dijk says in this connection that “by transferring more and more powers to the EU/EC, the exercise of which may interfere with the member states’ obligations under the ECHR, the member states have, in fact, also transferred part of their ‘answerability’ under the ECHR to the EU/EC. However, the latter’s ‘answerability’ has not yet been materialised by its submission to the jurisdiction of the European Court of Human Rights”.Note As observed by the Assembly, “by far the most serious lacuna surrounds the institutions of the European Union itself, the only public authorities operating in Council of Europe member states that are outside the jurisdiction of the European Court of Human Rights”,Note although it acknowledges that “the European Court of Justice, in its decisions, does in fact follow the case law of the [Strasbourg Court].”Note The Assembly stresses that its “concern in this matter is motivated by a desire to ensure that the inhabitants of Europe as a whole benefit from the most effective and efficient overall human rights protection system”.Note As noted by Mr Pourgourides in his report on the state of human rights in Europe, “accession of the EU/European Community to the Convention will serve to remedy negative consequences arising out of such a disparate system”.Note In this regard, the Committee of Ministers referred to the Warsaw Summit Action Plan, which suggested that “early accession of the EU to the ECHR would strongly contribute to ensuring coherence in the field of human rights in Europe”.Note The Secretary General of the Council of Europe lately recalled, and rightly so, that the “prospect of the European Union acceding to the European Convention on Human Rights [is] a very important development” adding that “the preparation for accession will not be easy – it will require a great deal of negotiation between the EU and the Council of Europe so that we and our colleagues in Brussels need to start immediately and work expeditiously”.Note
11. As noted above, discrepancies exist between the EU/EC and individual member states, due to the fact that the EU imposes human rights standards on non-European Union states (for instance, in the context of bilateral agreements and development aid), which it does not impose upon itself. In addition, the fact that the EU is gradually establishing its own standards, notably in the area of justice and home affairs (third pillar), has spurred some debate. For instance, the recent draft framework decision on certain procedural rights in criminal proceedings throughout the European Union has evoked doubts about its consistency with the ECHR.Note This is aggravated by the lack of external scrutiny of its own activities.Note Furthermore, a precondition for EU membership is accession to the ECHR (Copenhagen criteria, 1993), and the post-accession condition for continuous and unimpeded membership requires, inter alia, “respect for human rights and fundamental freedoms” set out in Article 6, paragraph 1, of the Treaty on European Union, which at a minimum includes “all rights and freedoms guaranteed by the [ECHR]”,Note explicitly referred to in Article 6, paragraph 2, of the same treaty.Note Despite the imposition of the foregoing pre- and post-accession conditions, the EU has itself not acceded to the Convention. This apparent contradiction will be eliminated by EU/EC accession to the ECHR.
12. Another pertinent argument in favour of accession is the fact that EU institutions will become subject to the same system of independent external monitoring of compliance with fundamental rights that public authorities in Council of Europe member states (thus, all EU member states) are already subject to.Note In addition, accession will enable European citizens to bring complaints against the EU institutions directly before the European Court of Human Rights.Note This will in turn provide the EU itself with the opportunity to participate as a party in cases directly or indirectly concerning the application of Community law before the European Court of Human Rights, thereby enabling it procedurally to explain contested provisions.Note Finally, the binding effects on the EU of any decision by the Court confirming a violation of the ECHR will be enhanced.Note As a result, accession “would confirm the European Union’s standing as a Community based on the rule of law, and legal certainty would benefit if the actions and decisions of the European Union institutions were subjected to the same external scrutiny as those of its member states.”Note
13. Furthermore, and this is a weighty argument raised by Mrs Benoît-Rohmer in her contribution, accession would have the practical consequence of simplifying legal remedies. Mrs Benoît-Rohmer recalls that “the procedures that currently have to be followed by a potential victim are complicated in that, after exhausting domestic and EU remedies, he or she must lodge an application with the Strasbourg Court, not against the perpetrator of the contested act (the Union or the Community), but against a member state. If that state is convicted, there is no guarantee that the victim’s situation will be remedied, since the remedy depends on a third party, the European Union”.Note Mr De Schutter also mentions the fact that “the accession of the EU to the ECHR would ensure that any individual aggrieved by an act adopted by the EC or the EU will have access to a court which will be competent to determine whether or not that act infringes fundamental rights”. Although he finds that the judicial protection of the individual would be markedly improved by the provisions of the Treaty of Lisbon, he stresses the undeniable added value of external judicial supervision of respect for human rights and fundamental freedoms which the European Court of Human Rights will be able to exercise after accession.Note
14. Lastly, execution of the Court’s judgments proves to be a most difficult undertaking in cases involving Union law. While the effective enforcement of the Court’s judgments forms the backbone of the Convention system, the current situation is seen to be unsatisfactory. Indeed, it is clearly difficult for a member state against which the Court delivers judgment to comply with the judgment if the violation arises partly from its obligations under Community law.Note
15. As with any long-standing debate, objections have been raised over the years, the main ones concerning the autonomy of the EU’s legal system and the perceived inappropriateness of the Court of Justice’s “subordination” to the Strasbourg Court. It is clear that the autonomy of the EU’s legal system and the special status of the Court of Justice must form part and parcel of any integration scheme.Note Indeed, Article 220 of the Treaty establishing the European Community (TEC) imposes the ultimate authority on the Court of Justice as regards the interpretation of Community law.Note In other words, the issue is not one of “subordination” of one court by another, but one of specialisation.Note As noted by the European Convention’s Working Group II, the Strasbourg Court “could not be regarded as superior court but rather as a specialised court exercising external control over the international law obligations of the Union resulting from accession to the ECHR”.Note As a result, the Court of Justice will retain exclusive competence (being the court of last instance) in reviewing final decisions in all matters relating to Community law. In the event that the Strasbourg Court finds inconsistencies between Community law, as interpreted by the Court in Luxembourg, and the ECHR, responsibility will lie on the EU, like any other Council of Europe member state, to align regulations or their application in a particular context with the requirements of the ECHR.Note The Strasbourg Court’s jurisdiction will be confined to the determination of violations of the ECHR, which concern only a small percentage of the cases brought before the Court of Justice.Note Community law and the ECHR are in any event based on the same values and principles regarding the protection of fundamental human rights.Note In the same way as the Strasbourg Court has a subsidiary role with regard to national courts, the EU institutions, upon accession, will continue to bear primary responsibility for ensuring respect for the rights enshrined in the ECHR.Note As noted by the former Deputy Secretary General of the Council of Europe, Hans-Christian Krüger, “the issue here is not subordination or primacy of courts but, rather, the submission of final decisions on alleged violations of fundamental rights to a uniform, specialised, pan-European body, with power merely to verify whether Community law and Community measures are compatible with fundamental rights”.Note He rightly argues that: “the autonomy and authority of the two courts would also be strengthened if each had the final say in its own area of jurisdiction”.Note As stressed by the EU Working Group II, “Accession would be the ideal tool to ensure a harmonious development of the case law of the two European courts in human rights matters.”Note
16. 16. Some anxieties have been raised regarding the influence which the Court’s imposition of positive obligations might have on the existing apportionment of powers between the European Union and its member states. The rapporteur draws attention to the stance of the EU Network of Independent Experts on Fundamental Rights, which states that “the Union will only be obliged to discharge such ‘positive’ obligations insofar as it has the necessary competences. It is only in the areas where the member states have conferred competences upon it that, in certain cases, it may be obliged to exercise them in order to ensure an effective protection of the rights and freedoms enshrined in the European Convention on Human Rights. … so the undertaking by the Union to observe the European Convention on Human Rights does not create any new competences or tasks for it, nor will it affect the existing division of competences between the Union and the member states.”Note
17. Mrs Benoît-Rohmer concludes in perfectly plain terms that “while the existence of pragmatic solutions probably makes accession less urgent than it used to be, the need for clarity, legal certainty and judicial protection for individuals, along with political factors, militates in its favour”.Note

3 The path to accession

3.1 Possibilities in the event of a modified institutional system

18. The referenda in France and the Netherlands have put on hold the entry into force of the Treaty establishing a Constitution for Europe, which, as mentioned previously, had explicitly foreseen the EU accession to the ECHR in Article I-9, paragraph 2 (“the Union shall accede”).Note But the legal possibility of accession does not depend on the treaty, which had merely intended to facilitate it. In other words, “accession is highly desirable while being legally possible with due regard to the autonomy of the Community legal order and without substantially altering the human rights protection mechanism set up under the ECHR”.Note
19. On 13 December 2007, the heads of state and government of the EU member states signed the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community.Note In a new Article 6, the treaty provides that “the Union shall accede to the Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties”.Note
20. This treaty indubitably lays a legal foundation for the accession of the EU to the ECHR. As Mr Jacobs points out in his contribution, the prescriptive formulation chosen for the new Article 6 has the effect of “not merely enabling, but requiring the European Union to accede to the ECHR”.Note
21. The question has arisen of which entity would have the capacity to accede to the ECHR. Strictly speaking, only the European Community at present has the necessary legal personality for accession. Mr De Schutter notes in his contribution that “there is a consensus among jurists that the European Union has an international legal personality”. Indeed, on the basis of Articles 24 and 38 of the Treaty on European Union (TEU), the Council of the European Union may conclude international agreements. It follows that the Union is “endowed with the international legal personality, without it being necessary to stipulate this explicitly”.Note The issue no longer arises since the Treaty of Lisbon integrates the EC with the EU, which in effect becomes the sole entity able to accede to the ECHR. For that reason, the rapporteur has opted to contemplate only the accession of the EU in her preliminary draft resolution and recommendation.
22. One may nevertheless question the expediency of the procedural changes projected by the insertion of a new Article 188n (in place of Article 300 of the Treaty establishing the European Community) providing that the decision on the agreement on Union accession to the ECHR can only be adopted by the Council of the European Union after obtaining the European Parliament’s consent. Furthermore, the new article provides that the Council of the European Union is to decide unanimously in this matter.
23. There may be anxieties over these additional stages which will indubitably have the effect of considerably slowing down the accession procedure. Given that the accession no longer raises any dispute, but is the subject of a broad consensus, it would have been preferable for everything to be done to hasten its actual attainment.
24. Although also not yet in force, Protocol No. 14 to the ECHR, which is aimed at securing the medium-term effectiveness of the ECHR system, explicitly provides for the possibility of EU accession to the Convention through an amendment of its Article 59.Note Further legal and technical amendments to the Convention, which principally relate to the modalities of participation in the control machinery of the ECHR (European Court of Human Rights, Committee of Ministers) will be necessary on the Council of Europe’s side in order to allow for accession.Note In this regard, the Steering Committee for Human Rights (CDDH) prepared a report in 2002 examining the technical and legal issues of a possible EU/EC accession,Note advancing two principal modalities by which accession could be achieved: either by way of an amending protocol to the Convention or by means of an accession treaty to be concluded between the EU and the Council of Europe member states. Although the CDDH expresses preference for the latter option, it was deemed that explicit reference to an accession treaty should be avoided so as to keep all options open.Note Due to the fact that the EU was held to lack competence to accede,Note no further modifications to the Convention were included in Protocol No. 14. As a result, and depending on the modalities chosen for accession, further modifications must become subject to a separate ratification procedure.Note

3.2 Possibilities in the event of an unchanged institutional system

25. In the unlikely event that the Treaty of Lisbon were not ratified by all member states and thus could not take effect, the legal reasoning put forward by the rapporteur in her introductory memorandum would stand.Note

3.3 Follow-up

26. It will also be important, once the text relating to EU accession to the ECHR is ready, to ensure that all 47 member states of the Council of Europe ensure its rapid entry into force.

4 Conclusions and recommendations

27. Over the years, the European Union has evolved in such a way as to reflect, in explicit terms, not only the growing awareness of human rights standards generally,Note but also the vital role played by the ECHR and the Strasbourg Court in this area. For instance, Article 6, paragraph 2, of the Treaty on European Union stipulates: “the Union shall respect fundamental rights, as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms …”.Note The Charter of Fundamental Rights of the European Union (EU Charter) as well as its “explanatory report”NoteNoteNote further make explicit reference, inter alia, to the ECHR and the case law of the Strasbourg Court. In addition, the Court of Justice explicitly follows the European Court of Human Rights’ case law in deliberating cases brought before it.Note Further, the recent creation of the EU Agency for Fundamental Rights confirms the EU’s growing commitment to human rights. In light of the foregoing, it is clear that “human rights have thoroughly permeated the Community legal system”.Note EU accession to the ECHR therefore represents a logical and necessary next step in harmonising the corpus juris concerning fundamental human rights across Europe.
28. To sum up these non-exhaustive considerations, accession will provide for:
  • greater protection of individuals’ rights;
  • consistency both at the level of European institutions and as between the EU/EC and individual member or prospective member states;
  • external review by an independent court, and enhanced credibility of the EU vis-à-vis third countries in implementing human rights standards.
29. Accession will thus ensure the coherence of the system of human rights protection throughout Europe and promote legal certainty.Note The adoption of the EU Charter only enhances the relevance of these considerations since accession to the ECHR and the implementation of the EU Charter should be seen as complementary processes.Note
30. Whilst EU accession to the ECHR has been debated for nearly thirty years, it has received increased political momentum following the Warsaw Summit of the Council of Europe, the Juncker report, the elaboration of the Treaty establishing a Constitution for Europe and finally the adoption of the Treaty of Lisbon. This opportunity must now be seized in order to move on to concrete action. Undoubtedly, this will involve legal and technical complexities. In the words of the United Kingdom’s Select Committee of the House of Lords: “We do not mislead ourselves in thinking that accession by the Union (and Communities) to the ECHR would be anything but politically and legally complex. Treaty amendments would be needed, certainly to the ECHR and probably to the EU Treaties. But we do not doubt that, given the political will, the legal and other skills can be found to overcome the difficulties.”Note

Appendix 1 – Contribution by Mr Pieter van Dijk, member of the Venice Commission and former judge on the European Court of Human Rights

I. Introductory observations

1. The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe invited me to participate in an exchange of views on the matter of the accession of the European Community/European Union to the European Convention on Human Rights on 11 September in Paris. Since I will not be able to attend the meeting, I take the liberty to present some written observations that might be included in the debate.
2. The issue of accession of the European Union (EU)/European Community (EC) to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has been discussed for almost thirty years, if we take the Memorandum of the European Commission of 1979 as a starting point.Note This lapse of time may have enhanced and at the same time diminished its urgency. In my opinion, from a substantive and practical point of view, its urgency has been diminished, thanks to the way in which the Court of Justice of the European Communities has developed its case law in the area of the protection of human rights,Note and thanks to the gradual standard-setting of the EU/EC in the same area. On the other hand, from a dogmatic and formal point of view, the urgency has increased in view of the extension of the powers of the EU/EC in fields which traditionally belong to states, and in the exercise of which all member states of the EU would be submitted to the jurisdiction of the European Court of Human Rights.
3. Although the proposals for accession from different sourcesNote have found broad support in governmental and nongovernmental circles, the adoption of the Treaty establishing a Constitution for Europe was the first occasion where the idea was supported unanimously by the heads of state or government of all member states. The change of attitude of the former opponents may be explained by the fact that their domestic authorities have also become accustomed to international human rights standards and international supervision; the ECHR has internal effect in their domestic legal orders and the jurisdiction of the Strasbourg Court has become compulsory. If only for this reason, the moment seems more appropriate than ever for the (Parliamentary Assembly of the) Council of Europe to, on its part, revisit the issue and take the necessary initiatives.

II. Practical point of view: the Court of Justice’s case law

4. This aspect does not need any further description on my part, since the surveys of the case law of the Court of Justice on the human rights principles as part of Community law and on the guiding role of the Strasbourg case law in interpreting these standards are abundant and easily accessible.Note

III. Principal point of view: international supervision

5. The development of international human rights standard-setting, and the concomitant international supervision of action and inaction by domestic authorities, has not yet incorporated the phenomenon of international governmental organisations with powers, delegated by the member states, to take decisions and action that so far were the domain of domestic authorities.
6. This holds, in particular, true for the EU/EC. On the one hand, it is an international organisation with powers delegated to it by its member states, but with the sovereignty of the member states remaining the decisive factor (une succession fonctionnelle et limitée),Note and with its own supervisory mechanism attuned to that special relationship. On the other hand, the institutions of the EU/EC exercise powers which are delegated to them with exclusion of the national authorities and which are comparable to certain powers traditionally exercised by the legislative, administrative and judicial authorities of the member states. Without such attribution of powers to the EU/EC, the exercise of these powers by the authorities of the member states would have been subject to review by the Strasbourg Court for its conformity with the ECHR.Note In fact, accession to the ECHR, with compulsory jurisdiction of the Court, was in recent years, and still is, a condition for membership of the EU/EC.Note For its credibility as a defender of human rights the EU/EC has to be prepared to also submit its own legal order and legal action to external supervision.Note This would mark the recognition that also within the legal order of the EU/EC the interests of European integration are controlled and bound by the effective protection of the fundamental human rights of the EU citizens, this “common code of fundamental values, in particular those laid down in the European Convention on Human Rights”.Note
7. It is a general feature of the law of international organisations that these organisations and their organs are immune, not only from the jurisdiction of the courts of their member states, but also from judicial organs of other international organisations. As the Venice Commission observed in that respect in one of its previous opinions: “The purpose of this rule is to ensure that international organisations can perform their tasks without undue and unco-ordinated interference by courts from individual states and other international institutions with their respective different legal systems.”Note However, this rationale would seem less valid in the area of human rights, since human rights standards are not just part of the legal system in the framework of which they have been adopted but are of a general universal or regional nature, as the case may be. Consequently, the international bodies set up to supervise the implementation and interpretation of these standards may be embedded in a particular organisation, but they must be seen primarily as the protectors of these universal/regional standards rather than as the supervisory bodies of those organisations.
8. In the case of the EU/EC in relation to the ECHR and the Strasbourg Court, there is an even more significant specific feature. As said before, the EU/EC has been endowed with powers that were originally exercised by the member states and as such belonged to the area of the Strasbourg Court’s jurisdiction. By transferring more and more powers to the EU/EC, the exercise of which may interfere with the member states’ obligations under the ECHR, the member states have, in fact, also transferred part of their accountability under the ECHR to the EU/EC. However, the latter’s accountability has not yet materialised by way of its submission to the jurisdiction of the Strasbourg Court. The result, therefore, is erosion of the jurisdiction of the Strasbourg Court’s ratione personae as well as its ratione materiae.Note This lacuna will gradually be filled, to a large extent, by the Court of Justice’s supervision of EU/EC acts as regards their conformity with the principles of fundamental rights, but this will not necessarily lead to a result equivalent to supervision by the Strasbourg Court.
9. This fact has not escaped the attention of the Court. In a judgment of 1999, it adopted the position previously taken by the European Commission for Human RightsNote that the member states cannot, by transferring powers to an international institution, evade their own responsibility under the ECHR and their accountability to the Strasbourg Court.Note The European Commission for Human Rights had put it in very clear terms as follows: “Under Article 1 of the Convention the member states are responsible for all acts and omissions of their domestic organs allegedly violating the Convention regardless of whether the act or omission in question is a consequence of domestic law or regulations or of the necessity to comply with international obligations.”Note And in a judgment of 1996 the Strasbourg Court held that the fact that the applicable domestic legislation is based almost word for word on an EC directive does not remove it from the ambit of the ECHR.Note For the scope of the Strasbourg Court’s review and the member state’s responsibility under the ECHR to pertain, it appears to be decisive whether or not the member states exercised discretionNote and had freely accepted the international obligation concerned.Note

IV. The Strasbourg attitude so far

10. The principle point of view set out under paragraph 3 could have led the Strasbourg Court, from the perspective of its own responsibilities and powers and in order to avoid a vacuum of international legal protection of the rights and liberties laid down in the ECHR, for the determination of its own jurisdiction to ignore the setting-up of the EU/EC with its supranational features (to “pierce the veil”) and to attribute the act or omission challenged before it to all member states or one or more member states in particular (the so-called “substitution approach”). The party who brings the complaint might invite the Strasbourg CourtNote to do so by bringing the claim, in addition to or instead of the EU/EC, to any or all member states.
11. Holding the member states answerable would, however, have the disadvantage of making member states responsible for an action they were obliged to take or in the taking of which they had no part at all or only a minor part. It would put them in the awkward position of, on the one hand, Article 46, paragraph 1, of the ECHR obliging them to implement the Strasbourg Court’s judgment, while, on the other hand, EU law may prohibit them from taking the required individual and general measures which such implementation requires, except the measure of paying damages. For the EU/EC it would have the disadvantage that its law and actions are examined and judged by the Strasbourg Court in a procedure in which it is not a party and thus able to explain and defend the law or actions, while the member state(s) concerned may press for changes to meet the standards of the ECHR.
12. So far, “Strasbourg” has chosen not to follow that conflict-provoking and unsatisfactory path. In cases where the substance of the complaint also concerns the interpretation or application of Community Law, the Strasbourg Court, without relinquishing jurisdiction, is prepared to refer to the judgment of the Court of Justice, as long as the procedure followed by that court offers substantive guarantees and a controlling mechanism that are equivalent to the procedure provided by the ECHR.Note By “equivalent”, the Strasbourg Court means “comparable”, since “any requirement that the organisation’s protection be ‘identical’ could run counter to the interest of international co-operation pursued”.Note From the case law of the Court of Justice and the references to human rights standards in the respective EU/EC treaties, the Strasbourg Court has so far drawn the assumption – with the possibility of rebuttal in a specific case – “that the protection of fundamental rights by EC law can be considered to be, and to have been at the relevant time, ‘equivalent’ … to that of the Convention system”.Note

V. Specific identity of the EU

13. Although the EU/EC has acquired several powers which before were exercised by the competent authorities of the member states, the EU/EC is not a state nor a federation of states. It remains an international organisation with specific goals and specific powers transferred to it to achieve these goals. This makes accession, on the one hand, more urgent and, on the other hand, more complicated.
14. Through the case law of the Court of Justice and subsequent declarations adopted by institutions of the EU/EC, the human rights standards laid down in the ECHR have been incorporated within the legal order of the EU/EC (“factual accession”). However, this does not necessarily mean that the institutions of the EU/EC will always apply these standards in the way they are interpreted and applied by the Strasbourg Court. The latter’s case law is oriented towards states and their powers and (democratic) decision-making processes, and does not necessarily take into account (yet) the specific features of the EU/EC in such a way that the latter may be sufficiently guided by its interpretation and application of the rules laid down in the ECHR. As long as the human rights standards to be applied by the Court of Justice are part of the EU/EC Treaty, the Court of Justice will be inclined to interpret them in the light of the purposes of European integration.Note After accession, the Strasbourg Court would have direct jurisdiction over the EU/EC institutions, would be informed about the EU/EC perspective on behalf of the EU/EC institution involved in a particular case, and would thus be enabled to take the specific features of the EU/EC as an organisation and of EU/EC law into account (with a judge elected in relation to the EU/EC participating in the deliberations). This would enhance the uniform interpretation and application of the ECHR in relation to all actions of authorities vis-à-vis individuals within the European human rights space, also taking into due account the specificities of the EU/EC.
15. The above observation implies that accession would make it also more complicated for the Strasbourg Court to develop its case law in such a way that it would remain consistent but, at the same time, would enable the institutions of the EU/EC to be guided by it. This asks not only for accession but also for dialogue, and for full consideration of the EU/EC elements and interests in the Strasbourg Court’s deliberations. It may also revive the plea for introducing the possibility, especially for the Court of Justice, to ask the Strasbourg Court for an advisory opinion.Note
16. A balance may be found by the Strasbourg Court’s preparedness, already indicated in its present case law, to leave the EU/EC institutions, and in particular the Court of Justice, a very broad margin of discretion, but in a restrictively defined area of EU jurisdiction.Note To what extent the Strasbourg Court will be prepared to do so appears from its judgment in the Bosphorus case. The government had contended that the interference complained of was justified for the reasons set out by the Court of Justice, an assessment that the Strasbourg Court in their opinion should decline to review “unless it is perverse, which they argue it clearly is not”.Note The Strasbourg Court followed this reasoning by stating that “[i]f such equivalent protection is considered to be provided by the organisation, the presumption will be that a state has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation”.Note But, again, such presumption may be rebutted; the “equivalent protection doctrine” functions as a kind of a “Solange doctrine”.
17. The path followed by the Strasbourg Court is in the interest of the administration of justice within a reasonable time and at the same time serves legal certainty. It means that, as a rule, the decisions by the Court of Justice about maintaining the ECHR within the EU/EC context will be endorsed by the Strasbourg Court, provided that the Court of Justice has jurisdiction on the matter, and provided that the latter does not depart from well-established Strasbourg case law and that its judgment does not concern an issue under the ECHR that has not yet been decided by the Court.Note
18. For the same purposes of the reasonable-time requirement and legal certainty, it might be considered to include in the accession instrument a provision comparable to Article 43, paragraph 2, of the ECHR: if an application is brought before the Strasbourg Court against an institution of the EU/EC, a panel will decide on whether the application will be accepted in the interest of legal protection and/or a uniform interpretation and application of the ECHR as a “constitutional instrument of European public order”.Note The “equivalent protection” criterion would thus function as an admissibility criterion, not as a jurisdiction condition. If the application is accepted by the panel, it will be dealt with by the Grand Chamber. This will keep the additional burden for the Strasbourg Court as restricted as possible, while this process of co-operation would also avoid a “prestige battle” between the two judicial organs.Note
19. Should accession by the EU/EC to the ECHR lead to a substantial flux of cases related to the (non-)application of the ECHR within a EU/EC context, the establishment of a separate unit within the Strasbourg Court, consisting of additionally elected judges, could be envisaged.
20. Although the Court of Justice has amply shown its preparedness to be guided by the case law of its Strasbourg counterpart, it is obvious that the functioning of the “equivalency balance” set out above requires that the EU/EC system should be formally brought within the ECHR system by accession.

VI. Treaty basis for accession

21. Mrs Bemelmans-Videc may be right in her assessment that the Court of Justice might, if asked at the present moment for an opinion about the question of whether the treaties establishing the EC and EU provide a basis for accession of the EC or the EU to the ECHR, reach a conclusion that differs from its opinion of 1996, and find the legal basis adequate and sufficient. Nevertheless, it would not seem very appropriate to ask for a second opinion on the matter without any relevant change in these treaties on the matter having been made. Moreover, even if such a second opinion would be asked, it is not very likely that the Court of Justice, regardless of the opinion of the majority of its members in the present composition and the present circumstances, would be inclined to revise its former very pertinent opinion.
22. For these and other obvious reasons, it would seem advisable, if not necessary, to include in the Treaty of Lisbon a provision along the lines of the second paragraph of Article 7 of the Treaty establishing a Constitution for Europe. This is indeed anticipated in the mandate to the Intergovernmental Conference. The ultimate provision should be formulated in the same obligatory from: “The Union shall accede”. There is no reason to expect that the period between the adoption of the Treaty establishing a Constitution for Europe and the negotiation of a new version by the Intergovernmental Conference will bring changes in the political will to make accession to the ECHR possible. It would seem desirable, however, that the legal basis for accession be formulated in broad enough terms to also make it possible for the EU/EC to accede to other human rights treaties that have direct relevance for its functions and powers.

VII. Concluding observations

23. The Intergovernmental Conference should decide to leave/include in the amending treaty a provision that the EU has international legal personality and that the EU will accede to the ECHR.
24. The Council of Europe and the EU should immediately start negotiations about the instrument of accession, and about its conditions and modalities, and its procedural implications.
25. The specificities of the EU, as compared to the contracting states, has duly to be taken into account, both in respect of the selection of applications to be dealt with and the margin of appreciation to be left, and in respect of the procedure to be followed.
26. The EU/EC has to also adapt its own rules concerning the jurisdiction of the Court of Justice and individual locus standi, to create the best possible conditions for effective respect of the ECHR within the EU/EC area of competence.Note
27. 27. The text of the EU Charter of Fundamental Rights should preferably be formulated identically to the ECHR, in so far as the same rights are concerned. If the present formulation of the EU Charter of Fundamental Rights remains unchanged and the charter becomes binding law, either by incorporation in the amending treaty or by a provision in the treaty to that effect, its Article 52, paragraph 3, has to be interpreted and applied by the Strasbourg Court and the Court of Justice in such a way that it is guaranteed that, to the extent that this formulation deviates from that of the ECHR, the latter prevails, unless the charter provides for a more extensive protection of the right concerned or provides for additional rights.

Appendix 2 – Contribution by Mr Francis G. Jacobs, Professor of Law, King’s College (London), and former Advocate General at the Court of Justice of the European Communities

I. Introduction

This is a short written version, as requested, of my analysis. It assumes that the proposed EU “Reform Treaty” (Treaty of Lisbon), due to be agreed in October 2007, enters into force. That treaty will have the consequence of providing a treaty basis for the European Union to accede to the ECHR, a basis which arguably does not exist under the present treaties; indeed it will have the effect of not merely enabling, but requiring the European Union to accede to the ECHR. Moreover, while previous discussion has considered the issue of accession by the EU/EC, and has involved discussion of the EU’s capacity to enter into treaties, the European Union will be the sole relevant organisation since, under the Treaty of Lisbon, the European Community will be subsumed into the European Union and will cease to exist, while the EU will have unquestioned treaty-making capacity. In the rest of this note I refer only to the EU.

I am asked to consider in particular the implications of EU accession for the observance of human rights standards across Europe and the relationship between the European Court of Human Rights and the Court of Justice of the European Communities.

II. The consequences of EU accession

In my view EU accession, while widely regarded as valuable for political and symbolic reasons, will have rather limited concrete effects on the observance of human rights standards. The effects will be limited because the ECHR is already accepted as the fundamental standard of human rights protection in Europe: this has long been recognised, for example, in the Treaty on European Union itself, and in the EU’s own policies including its enlargement policy. More recently it has been accepted in the case law of the Court of Justice, which not only applies the ECHR as if it were already in force for the EU, but also closely follows the case law of the European Court of Human Rights. The significance of the Court of Justice’s case law was strikingly recognised by the European Court of Human Rights itself in its judgment in the Bosphorus Airways case.

III. The legal effects of accession – Gaps in the present system

For legal, as opposed to political, purposes the main question must be whether the absence of EU accession leaves gaps in the system of human rights protection. The picture is of course complex: it must take account of, for example, both the case where member states implement EU law and the case where the EU institutions themselves are said to infringe the ECHR; a distinction must also be drawn between treaty measures (and measures of equivalent status) and subordinate measures in the form of EU legislation or decisions. But the answer is briefly that the existing gaps are not great: they are most likely to arise in the limited areas where the Court of Justice does not have the requisite jurisdiction. It would be desirable, in any event, for the Court of Justice’s jurisdiction to be extended to cover all cases in which the ECHR rights of individuals were affected by EU measures. Indeed the absence of a judicial remedy before the Court of Justice might itself be a violation of the ECHR. A possible beneficial effect of EU accession to the ECHR could therefore be the enlargement of the jurisdiction of the Court of Justice in such cases. That enlargement could be effected by treaty amendment or in some areas by development of the Court of Justice’s case law – for example, by enlarging the individual’s right of access to the EU courts, in particular the Court of First Instance.

IV. The EU Charter of Fundamental Rights

The system of protection of human rights in the EU will be made more complex by the EU Charter of Fundamental Rights, which will become legally binding (with certain limits) under the Reform Treaty, although not incorporated into the treaties. The intention of the charter is that those rights which correspond to ECHR rights should be interpreted consistently with ECHR rights. But the existence of two separate texts, with different formulations, will cause confusion. Further confusion may be caused if it is forgotten that the charter binds EU member states only where they are implementing EU law. There is also a risk of division between EU member states and non-member states, the latter bound by the ECHR but not by the charter. Measures should be taken, if possible, to limit the confusion and to ensure harmonious interpretation. The ECHR should remain the bedrock of human rights protection in Europe.

V. The modalities of EU accession to the ECHR

Negotiating the modalities of EU accession to the ECHR, and deciding what amendments are necessary to the Convention system and to the Convention text, may prove a difficult exercise. Substantive questions will arise about the scope of the Convention rights and their limitations, procedural questions about the relationship between the EU and its member states in proceedings before the European Court of Human Rights, institutional questions about the place of the EU on the Court and in the Committee of Ministers. It is essential, however, that the Convention system should not become unduly complex and that nothing is done which would weaken the Convention system.

Appendix 3 – Contribution by Mrs Florence Benoît-Rohmer, Professor at the Robert Schuman University (Strasbourg)

After a long period during which several European Union member states had serious misgivings about the EU’s accession to the ECHR, there is now unanimous support for this. The time for debating principles appears to be behind us, and it now seems more important to consider the practical implications.

I. Arguments in favour of accession

The basic arguments in favour of accession have become considerably weaker over time. Today, pursuant to Article 6, paragraph 2, of the Treaty on European Union, the European Union respects the rights safeguarded by the Convention, since they are incorporated in the treaty. In its case law, the Court of Justice requires the Community and the member states, where they are acting under Community law, to respect these rights as general principles of law. Admittedly, the actions of the EU in the field of justice and home affairs (JHA) have so far been largely beyond the supervision of the court, and this is a particularly sensitive field in respect of human rights. The “Communitarisation” of JHA, provided for in the constitution and in the treaties now being negotiated will make good this loophole.

Further to the MatthewsNote and Bosphorus AirlinesNote judgments, however, EU scrutiny does not rule out supervision by the European Court of Human Rights. According to the latter judgment, Community acts are presumed to be in keeping with the Convention, provided Community law affords protection equivalent to that provided by the Convention. This presumption is not absolute, however, and may be rebutted in individual cases. In practice, the situation is very similar to accession from every point of view.

In the circumstances, is there still a benefit to be gained from accession? Politically, accession would be a clear sign of European solidarity in the area of fundamental rights. In practical terms, it would simplify legal remedies, for the procedures that currently have to be followed by a potential victim are complicated in that, after exhausting domestic and EU remedies, he or she must lodge an application with the Strasbourg Court, not against the perpetrator of the contested act (the Union or the Community), but against a member state. If that state is convicted, there is no guarantee that the victim’s situation will be remedied, since the remedy depends on a third party, the European Union. To be convinced of this, one need only look back at the saga of the right of the inhabitants of Gibraltar to vote in the European elections. It took the indulgent intervention of the Court of Justice of the European Communities to provide an answer, which the European institutions had not succeeded in doing.Note

Furthermore, the prospective applicant is forced to engage in subtle analyses in order to determine whether the protection afforded by Community law is or is not equivalent to that provided by the Convention. The various unknown factors may prevent him or her from lodging an application, which is hardly conducive to ensuring judicial protection. Moreover, it is somewhat illogical for a state to be accused of an act for which it is not responsible, while the body actually responsible, the EU, cannot be party to the dispute. Accession would simplify the situation in this respect. Lastly, it would ensure that Article 1 of the Convention is fully effective, by rendering it applicable, no doubt, to all acts within its scope.

To sum up, while the existence of pragmatic solutions probably make accession less urgent that it used be, the need for clarity, legal certainty and judicial protection for individuals, along with political factors, militates in its favour.

II. Do the treaties need to be revised?

Here we need to be realistic. The member states accepted Opinion No. 2/94, which the Court of Justice of the European Communities delivered in 1996, on the need to revise the treaties to permit accession. There is no reason to believe that they will change their position. Indeed, they went further by inserting a clause concerning accession in the constitution.Note

This clause is included in the amending treaties currently being negotiated within the EU. Everything therefore depends on the entry into force of these treaties. In the meantime, all the controversy over the legal possibility of acceding without revising the treaties or of obtaining an opinion from the Court to this end are merely a waste of time – time that could be better spent supporting ratification.

III. Conditions of accession

According to the instruments currently being examined, accession must be based on an agreement negotiated by the Commission in accordance with the classic procedure, on the basis of a mandate from the Council. In the light of the Constitution, the agreement will have to be approved unanimously by the EU members and no longer by a qualified majority. Undue importance should not be attached to this change, which stems from a desire to avoid a transfer of power that would require a referendum in some member states before it could be approved, and not from any distrust of the Convention. In any event, as all the member states are parties to the Convention, their consent would be needed in order to have the accession agreement ratified by their national parliaments. The unanimity requirement does not introduce any substantive change.

The amending treaties maintain the accession requirement: the English text reads: “The Union shall accede” to the ECHR.

IV. The need to preserve the specific characteristics of the EU

The draft amending treaties incorporate the protocol appended to the constitution, on the EU’s accession to the ECHR.Note Article 1 of the protocol makes accession conditional upon respect for the specific characteristics of the Union and Union law. This requirement has major implications for the way in which the Court’s supervision operates and for the institutional aspects of accession.

Given the sharing of competence between the EU and its member states, it is necessary to ensure that applications are lodged against the party that is actually responsible for the violation. The decision is not easy where states are concerned when EU law affords states a margin of appreciation. In such cases it is necessary to determine whether or not the violation took place within the scope of that margin of appreciation. To leave it to the European Court of Human Rights to determine this would be tantamount to allowing it to pass judgment on the apportionment of competence between the EU and its member states, which is not acceptable. It is therefore necessary to devise a system that allows the individual to attack the EU and a member state simultaneously, leaving it to the EU itself to designate the respondent party, if necessary with the help of the Court of Justice of the European Communities. A solution of this kind is already provided for in Article6 of Annex IX to the Convention on the Law of the Sea.

The other question concerns the EU’s participation in the supervisory machinery. In the case of the Court, the specific features of the Court would seem to require the presence of an “EU judge”. The question is whether this judge should vote in all cases or only those in which the EU’s responsibility is in issue. As for the Committee of Ministers, appropriate provision will have to be made for EU participation in proceedings concerning the ECHR.

What form should the Court’s supervision take? It has sometimes been suggested that the Court of Justice should refer preliminary questions to the European Court of Human Rights. Such an arrangement does not seem to respect the specific characteristics of the EU, which, in its area of competence, should be considered a party like any other. Moreover, imagine how long a case would last if the Court of Justice, to which a preliminary issue had been referred, referred a preliminary question in turn to the European Court of Human Rights. Some four or five years could elapse before the domestic court handed down a decision on the merits. Such a solution could deter applicants, and this would raise serious problems with regard to the uniform application of Community law. The only reasonable approach is that based on individual petition after the exhaustion of domestic remedies, because it gives the individual a free choice.

Accession cannot be fully effective in this regard unless the European Court of Human Rights succeeds in speeding up its decision-making process. The entry into force of Protocol No. 14 is therefore, in all respects, a prerequisite, and the reform of the system must be diligently pursued.

V. Respect for the powers of the EU institutions

This requirement of the protocol on the accession of the EU to the ECHR is designed, in particular, to preserve the role of the Court of Justice, which is to retain exclusive power to review the lawfulness of the EU’s acts. The Strasbourg Court’s judgments must remain declaratory, and it will be for the EU institutions to decide on the implications of any conviction.

Similarly, the Court of Justice has sole jurisdiction, as it vehemently pointed out recently, to settle disputes between member states concerning the application of the treaty. It is therefore necessary to exclude such disputes once accession takes place and reserve jurisdiction over them for the Court of Justice. This principle is set out in paragraph 3 of the protocol.Note

VI. Commitments of the member states and of the EU

Article 2 of the protocol on the accession of the Union to the ECHR is designed to govern relations between the commitments of the EU and those of the member states in relation to the Convention.Note Each party must remain in control of its own undertakings and free to choose their scope. The EU’s commitments must not affect the member states in their areas of competence. This implies that EU involvement in a protocol must not entail any obligations in a field of competence specific to a member state that has chosen not to ratify the protocol, and vice versa.

VII. Conclusion

The principle of accession is no longer contested, and it is now necessary to focus not on accession itself but on the way in which it should be implemented. In other words, for the sake of effectiveness, we must consider that the time for political rhetoric has passed and must now get down to concrete work on the practical aspects of the EU’s participation, with due regard for its specific characteristics and the constraints to which it is subject.

Appendix 4 – Contribution by Mr Olivier De Schutter, Professor at the Law Faculty of the Catholic University of Leuven and at the College of Europe (Bruges)

I. Introduction

In view of the hearing it is planning to hold in Paris on 11 September 2007, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has requested an opinion on the introductory memorandum (AS/Jur(2007) 22 rev., 9 July 2007) prepared by the rapporteur, Mrs Marie-Louise Bemelmans-Videc, on the question of the accession of the European Union/European Community to the European Convention on Human Rights (this document will hereafter be referred to as “the memorandum”). These comments first address the new context created, since the memorandum was completed, by the provisional political agreement reached among the EU heads of states and governments on the draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community (draft Reform Treaty). It then examines a number of issues raised by the introductory memorandum.

II. The draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community (draft Reform Treaty)

In view of the preparation of the report of the Parliamentary Assembly, the memorandum should be amended to take into account the political agreement reached on the text of a draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community (draft Reform Treaty) (CIG 1/07, 23 July 2007), which in all likelihood will be confirmed on 18 and 19 October 2007 and signed at the European Council of December 2007. In this regard, three comments should be made.

i. The competence of the European Union to accede to the ECHR

First and most importantly, the draft Reform Treaty anticipates that the EU will be attributed the competence to accede to the European Convention on Human Rights. The text on which provisional agreement was obtained would include an amendment to Article 6 of the Treaty on European Union, which would now state in paragraph 2:

“The Union shall accede to the Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.”

Apart from the abandonment of the word “constitution”, this phrase is identical to that mentioned in Article I-9.2, of the Treaty establishing a Constitution for Europe, which was signed on 29 October 2004 following the previous Intergovernmental Conference but which could not be ratified by all the EU member states and, thus, will not enter into force. However, the draft Reform Treaty also provides for the insertion in the amended Treaty establishing the European Community (renamed Treaty on the Functioning of the European Union (TFEU)) of Article 188n, replacing former Article 300. Article 188n would provide, first, that the European Parliament should consent to the agreement on Union accession to the Convention for the Protection of Human Rights and Fundamental Freedoms, prior to this agreement being concluded by the Council (Article 188n, paragraph 6, sub-paragraph 2.a.ii). And it would add (Article 188n, paragraph 8, second sub-paragraph) that:

“… The Council shall … act unanimously for the agreement on accession of the Union to the Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall not come into force until it has been approved by the member states in accordance with their respective constitutional requirements.”

In other terms, the conclusion of an agreement on the accession of the EU to the ECHR is treated as a constitutional question, requiring that each member state ratifies the agreement prior to it entering into force. This goes beyond not only the requirement that the Council act by qualified majority when authorising the opening of negotiations, adopting negotiating directives, authorising the signing of agreements and concluding them – which is the general rule in the negotiation and conclusion of international agreements by the Union – but also the requirement of the Council acting unanimously. Since this may put in jeopardy the objective of concluding an agreement on the accession of the EU to the ECHR for which the heads of state and governments of the member states of the Council of Europe have stated their support at the Warsaw Summit of May 2005, the Parliamentary Assembly of the Council of Europe might wish to consider sending a strong signal that thus adding a supplementary hurdle is not in conformity with that proclaimed intention, and that it can only result in delaying further the process of accession.

ii. The legal personality of the European Union

Second, the draft Reform Treaty provides for insertion of Article 32 into the Treaty on European Union in order to ensure that the Union shall have legal personality, following the entry into force of the Reform Treaty. The memorandum states, on this point, that “the EU/EC must also have legal personality, which, to date, is only recognised for the EC, although some argue that the EU’s legal personality has been recognised implicitly, at the latest by the Treaty of Nice” (paragraph 16, footnote omitted). However, it should be noted that there is a consensus among jurists that the European Union has an international legal personality.Note This follows from Articles 24 and 38 of the Treaty on European Union, which provide that “the Council”, representing the Union (that is to say, not the EU member states), and acting as one of the institutions of the Union, concludes international agreements.Note The Treaty of Nice, in so far as it amends Article 24 of the Treaty on European Union, merely confirms what was already the case prior to its entry into force. In so far as the EU has been attributed a competence to conclude international agreements – and it has, indeed, exercised this competenceNote – it follows that it is endowed with the international legal personality, without it being necessary to stipulate this explicitly.Note This is also the view adopted by the Legal Service of the Council of the European Union, at least since 2000.Note It may not be advisable to adopt, on this point, a position which is less progressive than that of the Council of the EU itself.Note

iii. Judicial protection under Union law

A third contribution of the draft Reform Treaty to the debate on the accession of the Union to the ECHR concerns the question of remedies. In the course of the debate on the accession of the EU to the ECHR, one of the most frequently heard arguments in favour of the said accession – but one not mentioned in the memorandum – is that the remedies open to private parties (whether individuals or legal persons) in the EU/EC legal order are in certain respects insufficient, and that, by contrast, Article 34 of the ECHR is relatively generous in defining the conditions under which a person alleging to bea victim of a violation of a right or a freedom recognised under the ECHR may file an individual application before the European Court of Human Rights. Therefore, according to this argument, the accession of the EU to the ECHR would ensure that any individual aggrieved by an act adopted by the EC or the EU will have access to a court, which will be competent to determine whether or not that act infringes fundamental rights.

This argument, which was still very powerful a few years ago, now should be treated with caution. The question of whether the individual whose legal situation is affected by an act adopted by the EU/EC has access to the judicial remedies required under Article 13 ECHR (right to an effective remedy), which Article 47 of the EU Charter of Fundamental Rights builds upon while further strengthening its requirements (right to an effective remedy and to a fair trial), presents at leastNote three distinct branches.Note

First, there is the question whether the general system of remedies organised by the Treaty establishing the European Community (including both direct actions before the Court of Justice and the referral by national courts to the court, which may adopt preliminary rulings in the conditions specified in Article 234 of the Treaty establishing the European Community) complies with those requirements. The rules of the Treaty establishing the European Community still currently present significant gaps in this regard: although direct actions seeking the annulment of Community acts with a general scope of application can only be filed by individuals which have not only a direct interest in seeking their annulment, but also an individual interest (according to the traditional interpretation of Article 230, fourth paragraph), certain regulatory acts may directly affect individuals without individualising them sufficiently for this criterion to be satisfied; and the alternative of seeking a referral from national courts may not be satisfactory where this would oblige an individual to run the risk of being subjected to penalties for having violated a rule applicable to him. However, without modifying its interpretation of the conditions in which a private person may file a direct action before the Court of Justice for the annulment of a Community act, the court has shown in its recent case law a willingness to impose an obligation on states to adapt their national legal systems (specifically, the procedures before the national courts) in order to ensure that the full system of remedies will not leave any gap. Thus, in a judgment it delivered on 13 March 2007, the Court of Justice noted:Note

“Although the EC Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Community Court, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law...

It would be otherwise only if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under Community law...

Thus, while it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection... It is for the member states to establish a system of legal remedies and procedures which ensure respect for that right....”

This judgment confirms that the Court of Justice is willing to require that the EU member states contribute to the elaboration of a complete system of remedies which will ensure that the requirements of Article 47 of the EU Charter of Fundamental Rights will be complied with within the EC legal order.

A second problem results from the specific conditions under which the competences of the Court of Justice under Article 234 of the Treaty establishing the European Community (referral for preliminary rulings) will be exercised in the areas covered by Title IV (visas, asylum, immigration and other policies related to the free movement of persons).

A third problem, finally, concerns the limited powers of the Court of Justice under Title VI of the Treaty on European Union. It is left to each EU member state to define, to a large extent, the conditions under which its national jurisdictions will be allowed (or, in certain cases, obliged) to co-operate with the Court of Justice by using a referral mechanism (see Article 35 of the Treaty on European Union). And there is no provision for the filing, by a private individual, of a direct action in annulment of acts adopted by the EU under this title of the treaty.

These problems are analysed elsewhere and there is no need here to enter into them in detail.Note Indeed, as in the 2004 Treaty establishing a Constitution for Europe, in the draft Reform Treaty the normal jurisdiction of the Court of Justice will apply to all justice and home affairs matters, with the sole exception of a specific restriction to be set out in Article 240b of the Treaty establishing the European Community (TFEU):

“In exercising its powers regarding the provisions of Chapters 4 and 5 of Title IV of Part Three relating to the area of freedom, security and justice, the Court of Justice of the European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a member state or the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security.”

This restriction (which was Article III-377 of the Treaty establishing a Constitution for Europe) applies only to criminal law and policing, and retains the current Article 35, paragraph 5, of the Treaty on European Union. The various other restrictions on the court’s jurisdiction over matters relating to judicial cooperation in criminal matters and police co-operation, on the one hand (Article 35), and to visas, asylum, immigration, and other policies related to the free movement of persons, on the other hand (Article 68 of the Treaty establishing the European Community), are to be repealed.Note

Not only will the powers of the Court of Justice be extended – the jurisdiction it now enjoys under the Treaty establishing the European Community spreading to all fields under the EU/EC treaties – but, in addition, the draft Reform Treaty intends to improve access to justice by individuals, partly by liberalising the rules on standing for the filing of direct actions for annulment of regulatory acts, and partly by constitutionalising the case law of the Court of Justice, already referred to above, which ensures that the EU member states contribute to guaranteeing that the right to an effective judicial remedy will be safeguarded in the EU legal order. The draft Reform Treaty will amend Article 230, fourth paragraph, of the Treaty establishing the European Community (Treaty on the Functioning of the European Union). This provision would now read:

“Any natural or legal person may, under the same conditions, institute proceedings against an act addressed to that person or which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures.”

In addition, the draft Reform Treaty provides that an Article 9.f will be inserted into the Treaty on European Union, on the Court of Justice of the European Communities. This includes an obligation imposed on the EU member states to contribute to ensuring that the right to an effective judicial remedy will be recognised to all persons affected by Union law (Article 9.f, paragraph 1, second sub-paragraph):Note

“Member states shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”

In sum: a. the memorandum could refer to the fact that, under the EU/EC treaties, the legal protection of the individual may be insufficient, and his right to an effective remedy may not always be fully complied with; b. it could add that this situation will be significantly improved by the Treaty amending the Treaty on European Union and the Treaty establishing the European Community, which currently has been provisionally agreed to in its draft form; and c. it could conclude by stating that, while the improvement of the remedies available within the legal order of the European Union ensures that, in the vast majority of situations, any alleged violation of the ECHR rights will be addressed within the EU legal order and according to legal procedures established by the EU treaties themselves, there remains a distinct advantage in organising an external judicial supervision of compliance with human rights and fundamental freedoms. Thus, while the EU should not fear any far-reaching consequences of accession to the ECHR for the system of judicial remedies organised by the EU treaties (since the needed reforms are already under way), it should at the same time recognise that however complete and developed, a system of judicial protection of the rights of the individual internal to the legal order from which the measures threatening those rights emanate is inherently less capable of a fully objective and impartial appreciation of the requirements of judicial protection. In addition, while the Court of Justice may identify instances of violation of fundamental rights which result from secondary Union law (from the adoption, in particular, of regulations, directives, decisions, or judgments of the Court of First Instance), it cannot remedy violations which have their source in primary Union law (that is to say, in the EU treaties themselves), which the Court of Justice is bound to respect.

III. Arguments in favour of accession of the EU to the ECHR

The memorandum presents a list of arguments in favour of accession. It refers, appropriately, to the fact that the accession of the Union to the European Convention on Human Rights will ensure that the Union will be represented as such in the European Court of Human Rights and on the Committee of Ministers of the Council of Europe, which oversees the enforcement of the Court’s judgments. This situation will be more satisfactory than the situation that exists today, where the compatibility of acts of the Union with the European Convention on Human Rights is in fact reviewed by the European Court of Human Rights, albeit in an indirect way – since this review takes place through the international responsibility of the Union member states, who are all Contracting Parties to the European Convention on Human Rights – and without the Union being represented in any way in the monitoring bodies.

Two supplementary arguments could be put forward, however.

i. Access to remedies

First, as mentioned above, reference could be made to the question of the legal remedies available to the individual whose human rights have been violated. While, in my view, the current state of EU law is not satisfactory under Article 13 of the ECHR – and the possibilities for the individual victim to file an application before the European Court of Human Rights under Article 34 of the Convention are wider than under the range of remedies available in the EU legal order – the Reform Treaty should improve this, and the changes proposed to the jurisdiction of the Court of Justice, if combined with the obligation of the EU member states to organise remedies before the national courts in accordance with the requirements of Article 47 of the EU Charter of Fundamental Rights, will probably ensure that the EU will be in conformity with the requirements of the ECHR.

ii. Problems with the current situation

a. The execution of the judgments of the European Court of Human Rights in cases involving Union law

A first problem is that, when the European Court of Human Rights arrives at the conclusion that the Convention has been violated, the state party against which the application has been filed may find it difficult to comply with that judgment, although it has a legal obligation to do so under Article 46 of the ECHR. In Matthews v. the United Kingdom, the European Court of Human Rights found the United Kingdom to have breached Article 3 of the First Additional Protocol to the Convention, because the applicant could not take part in the election for the European Parliament as she was a resident of Gibraltar (judgment of 18 February 1999). But this situation – while it fell under the territorial jurisdiction of the United Kingdom – flowed from an annex to the Act concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage of 20 September 1976, which was attached to Council Decision No. 76/787, signed by the President of the Council of the European Communities and the then member states’ foreign ministers, together with the extension to the European Parliament’s competences brought about by the Maastricht Treaty on European Union on 1 November 1993. Since the violation had its source in EU law – specifically, in primary EU law (the EU treaties) – the United Kingdom alone could not in principle decide to comply with the judgment of the European Court of Human Rights. While the European Parliament (Representation) Act 2003 (EPRA, 2003) finally did provide for the enfranchisement of the Gibraltar electorate for the purposes of European Parliamentary elections as of 2004,Note this action was taken unilaterally after a failure to secure the unanimous agreement of the Council to an amendment to the EC act on direct elections of 1976 to provide for its application to Gibraltar.Note Ireland would have faced a similar difficulty if, in the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi, the European Court of Human Rights had concluded that the Convention had been breach by the impounding of the aircraft leased by the applicant company.

b. The degree of judicial scrutiny to be applied to measures adopted by the European Union

A second problem is that measures adopted by the EU/EC are examined by the European Court of Human Rights with a lower level of scrutiny. In the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, the Court confirmed its previous positions according to which, although the Convention does not prohibit contracting parties from transferring sovereign power to an international (including a supranational) organisation in order to pursue co-operation in certain fields of activity, a contracting party nevertheless remains responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. In the view of the Court, “absolving contracting states completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention”. However, said the Court (in paragraph 155 of its judgment):

“State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides.... By ‘equivalent’ the Court means ‘comparable’: any requirement that the organisation’s protection be ‘identical’ could run counter to the interest of international co-operation pursued.... However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights’ protection.”

This “Solange” approach is closely inspired by the attitude of the German Federal Constitutional Court (Bundesverfassungsgericht) when asked to recognise the supremacy of EU law even where this might result in situations where the catalogue of fundamental rights of the Grundgesetz would be set aside.Note In 1990, it was imported by the European Commission of Human Rights, inspired in that respect by Henry Schermers and H.-C. Krüger.Note This doctrine benefits Union law; more precisely, it benefits the EU member states, as States Parties to the European Convention on Human Rights, when they implement Union law in the absence of any margin of appreciation. By contrast, it does not benefit states parties to the Convention, even where they have organised a system of protection of fundamental rights in their internal legal orders which may be considered “equivalent”, both substantively and procedurally, to that provided by the European Convention on Human Rights (for instance, where their national courts apply directly the Convention and take into account the interpretation given to the Convention by the European Court of Human Rights, and where there exists a constitutional court which can annul or set aside national legislation conflicting with the requirements of the Convention).

This doctrine of “equivalent protection” has been initially devised in order to facilitate the participation of the states parties to the Convention in the EU/EC, a supranational organisation to which they have agreed to cede certain powers in a number of fields which may affect fundamental rights. In the event of the Union acceding to the Convention, there are three possible scenarios. A first scenario is that this doctrine of “equivalent protection” will expand further, to any situations where, at national level, such “equivalent” protection is provided. This “spreading out” of the doctrine would clearly manifest the principle of subsidiarity in the system of the European Convention on Human Rights – the principle according to which the protection of the rights and freedoms of the Convention must primarily take place at national level, the intervention of the European Court of Human Rights being only justified where those internal mechanisms have failed to prevent violations from occurring or, if they do occur, from being remedied. Some might see this as a welcome development, in a context where the European Court of Human Rights manifestly cannot manage its increasing caseload, and where even the solutions offered by Protocol No. 14 to the Convention will have a limited impact. A second scenario is that, instead, the doctrine of “equivalent protection” will be abandoned. In a situation such as that presented in Matthews or Bosphorus Airways, it will be the Union, not the member state implementing Union law under whose territorial jurisdiction the alleged violation has occurred, that will in fact have to respond, under the Convention, to the measures adopted. The European Union will be approached by the European Court of Human Rights as any other party to the Convention, the only difference residing in the need to take into account the division of competences between the Union and the member states: there is no reason to apply a lower level of scrutiny to the acts adopted by the Union than to the acts adopted by any other parties to the European Convention on Human Rights, since the sole purpose of the doctrine of “equivalent protection” – requiring that a lower level of scrutiny be applied – is to facilitate the compliance by states with commitments they have made in the context of a supranational organisation such as the EU/EC, without setting aside their responsibilities under the Convention.Note A third scenario, finally, is that nothing will change: the doctrine of “equivalent protection” will continue to be relied upon by the European Court of Human Rights when examining the compatibility of measures adopted by the EU with the European Convention on Human Rights – whether these have their source in primary or secondary Union law – but this doctrine will not be relied upon in other circumstances.

I believe that, while this third scenario is not implausible, it would be legally unjustified and politically inopportune. It would be legally unjustified, since, once the Union accedes to the Convention, the need to reconcile the potentially conflicting international obligations of the EU member states (as having to comply both with Union law and with their obligations under the Convention) will have disappeared; in addition, while the doctrine may have been useful for evaluating the obligations of the EU member states under the Convention, its rationale should not be extended to evaluating the obligations of the Union itself. The third scenario would also be politically inopportune. Since it would not align the status of the Union with that of the other parties to the Convention, it would be sending the wrong signal to European citizens; and it would only partly address the problems justifying the accession of the Union to the Convention in the first place. Therefore, if the reference to the “specific features” of the Union in the draft Reform Treaty is meant to preserve the doctrine of “equivalent protection”Note it should be challenged. This expression should only refer to the need to organise the processing of applications filed against the EU member states and/or the European Union, in order to take into account the characteristics of the division of competences among them which, in accordance with the principle of autonomy of the Union legal order, should be resolved with reference to Union law alone, under the supervision of the Court of Justice (see hereunder, Section V). It should not serve to otherwise preserve some form of “extra-conventionality” of the Union.

Ultimately, it will be for the European Court of Human Rights to decide among the three scenarios that have been outlined. It would be unwise to seek to influence the choice of the Court in this regard. What the Parliamentary Assembly of the Council of Europe could do, however, is to oppose any attempt, in the negotiation of the accession treaty (or of a protocol to the European Convention on Human Rights providing for the accession of the EU), to restrict the degree of scrutiny that the European Court of Human Rights will be allowed to exercise on the European Union.

c. The risk of conflicting interpretations of the requirements of the European Convention on Human Rights

I have noted that there are two risks present in the current situation, which constitute powerful arguments in favour of the accession of the Union to the European Convention on Human Rights. In contrast, I do not think that there exists a real risk of diverging interpretations of the requirements of the European Convention on Human Rights in the current situation. The Court of Justice applies the Convention with the interpretation given to that instrument by the European Court of Human Rights: its record in this respect has been generally excellent, and comparable to the best national constitutional or supreme courts of the contracting parties to the Convention. Of course, in situations where the Court of Justice has decided a case raising an issue under the Convention in the absence of a case law of the European Court of Human Rights, it may be difficult for the Court of Justice – as for any national constitutional court placed in a similar situation – to anticipate what the attitude of the European Court of Human Rights might be. But, if it is suspected that the Court of Justice has erred in applying the Convention to the situation it is confronted with, it remains possible for the victim of the alleged violation to seek to engage the responsibility of the EU member state under whose jurisdiction he or she is placed, by filing an application against that state (or indeed, against the 27 EU member states collectively) before the European Court of Human Rights, as Ms Matthews chose to do following the 1994 elections of the European Parliament.

IV. The complementarity of the incorporation of the EU Charter of Fundamental Rights in the EU treaties and accession of the Union to the ECHR

It is also appropriate that the memorandum underlines the complementarity of the incorporation of the EU Charter of Fundamental Rights in the EU treaties and accession of the Union to the ECHR. As stated by the report on the situation of fundamental rights in the Union in 2004 prepared for the EU Network of Independent Experts on Fundamental Rights,Note an analogy can be made with the inclusion in the member states’ constitutions of a more or less extensive range of fundamental rights, which does not prevent those states from acceding to the European Convention on Human Rights or other international instruments for the protection of human rights: likewise, the incorporation of the EU Charter of Fundamental Rights in the European constitution does not invalidate the accession of the Union to the European Convention on Human Rights or deprive it of its utility. And just as it is all the easier for the States Parties to the European Convention on Human Rights to comply with the obligations of that Convention since their internal constitutional law ensures effective protection of fundamental rights, so it will be all the easier for the Union to meet its obligations under the ECHR since it will strengthen internally the protection of those rights through the incorporation of the EU Charter of Fundamental Rights in the EU treaties, by direct incorporation or by reference. For the states as well as for the Union, the undertaking to comply with an international instrument for the protection of human rights does not make it unnecessary to improve this protection in the internal order. On the contrary, such an undertaking encourages them to pursue improvements.

V. The compatibility of accession with the requirements of EU law

i. The question of the autonomy of the EU legal order

Article 1 of Protocol No. 5 to the draft Reform Treaty provides:

“The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms … provided for in Article [I-9, paragraph 2] of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to:
a. the specific arrangements for the Union’s possible participation in the control bodies of the European Convention;
b. the mechanisms necessary to ensure that proceedings by non-member states and individual applications are correctly addressed to member states and/or the Union as appropriate.”

By mentioning the need to “preserve the specific characteristics of the Union and Union law”, this provision refers to the respect due to the principle of autonomy of Union law. Consequently, when an individual application is filed in accordance with Article 34 of the European Convention on Human Rights against the Union or a member state, the party concerned must be identified in accordance with the arrangements defined in Union law, under the ultimate control of the Court of Justice.Note

On this point, paragraph 12 of the memorandum may create some confusion. The paragraph discusses together, as if they were somehow linked to one another, the question of the autonomy of the EU legal order, and the question of whether accession of the EU to the ECHR will result in one court being “superior” to the other. But these questions are distinct and should be kept so. The “autonomy” referred to does not mean that there are limits to which form of external supervision the EU may submit to. Rather, this principle is derived from the rule according to which the Court of Justice ensures observance of the law in the interpretation and application of Union lawNote as well as from the rule according to which the member states undertake not to submit a disagreement on the interpretation or application of the EU treaties to any other mode of settlement than those provided for by the EU treaties.Note The Court of Justice saw in those provisions the expression of a general principle, according to which the court itself must remain the ultimate interpreter of the law of the Union, and more particularly the rules in the EU treaties establishing the division of competences between the Union and its member states. The principle of autonomy of the Union’s legal order consequently rules out the Court of Justice’s being bound by the interpretation which another court of law may give of Union law. Situated according to Opinion No. 1/91 of 14 December 1991, this principle thus requires that questions of interpretation and application of Union law cannot be settled according to procedures outside the European Union, but only according to the rules of settlement which the Union itself has instituted.Note Nevertheless, this principle does not exclude all forms of international commitment of the European Union that are placed under the control of an international court outside the Community’s legal order.Note

In paragraph 13, the memorandum proposes that “an option to avert possible contradictions between the case law of the two courts might consist of inserting an explicit provision into the Court of Justice and Court of First Instance (CFI) rules of procedure, similar to Article 6 of the European Economic Agreement, which could stipulate that EU/EC law should ‘without prejudice to future developments … be interpreted in conformity with the relevant rulings’ of the European Court of Human Rights”. This proposal should not be retained. Its immediate effect would be to create the suspicion that the autonomy of the EU legal order would be threatened by accession, thus further confusing the issue of the requirements linked to the principle of autonomy. Article 6 of the Agreement creating the European Economic Area, it should be emphasised, did not state that the Court of Justice would be bound by the interpretation given to EU law by another judicial body.Note Had this been the case, it would probably not have been compatible with the principle of autonomy as explicated by the Court of Justice in the two opinions it delivered on the EEA agreement. After accession, the European Convention on Human Rights will be part of EU law, and, both as a result of this and because this is prescribed by Article 52, paragraph 3, of the charter, the Court of Justice will apply the Convention taking into account the case law of the European Court of Human Rights.Note This is already its current practice. No supplementary provision, in the rules of procedure of the Union jurisdictions or elsewhere, are required for this to continue. It is, of course, up to Union law to decide how – according to which horizontal division of tasks between the institutions and vertical division of competences between the EU member states and the Union – the obligations resulting from the accession of the Union to the ECHR should be implemented in the EU legal order. It may not be appropriate for the Parliamentary Assembly of the Council of Europe to prejudge the measures that will be taken, within the EU legal order, for that purpose. The clause proposed, in addition, would have the unfortunate consequence of suggesting that the Court of Justice would in some way be subordinated to the European Court of Human Rights, which it is not currently and which it will not be even after accession.

On the other hand, it would perhaps be desirable for the memorandum to address the question of whether the imposition by the European Convention on Human Rights of positive obligations on the parties may affect the neutrality of the accession of the European Union to the ECHR as regards the division of competences between the Union and the member states.Note The report on the situation of fundamental rights in the Union in 2004 prepared for the EU Network of Independent Experts on Fundamental Rights states the following on this point:

“… the Union’s accession to the European Convention on Human Rights will not lead to any changes in the division of competences between the Union and the member states.Note This division of competences will continue to be governed by European Union law only. It is not up to the European Court of Human Rights, which is the guardian of the European Convention on Human Rights, to rule on this. When the European Court of Human Rights, having received an application claiming a violation of the Convention, establishes the existence of such a violation, it will be up to the Union and the member states, under the supervision of the Court of Justice, to determine which measures need to be adopted in order to put an end to the violation that has been established, and who – the Union or the member states – should take action to this effect. Doubts have been expressed about the neutrality of the accession of the Union to the European Convention on Human Rights with respect to the existing division of competences, bearing in mind in particular that the European Court of Human Rights has not hesitated to impose on the contracting Parties the observance not only of obligations of abstention, but also of so-called ‘positive’ obligations, consisting in the obligation to act by adopting certain measures, notably of a legislative nature. In fact, the Union will only be obliged to discharge such ‘positive’ obligations insofar as it has the necessary competences. It is only in the areas where the member states have conferred competences upon it that, in certain cases, it may be obliged to exercise them in order to ensure an effective protection of the rights and freedoms enshrined in the European Convention on Human Rights. Precisely as the Charter of Fundamental Rights of the Union ‘does not establish any new power or task for the Union, or modify powers or tasks defined in the other parts of the Constitution’ (Article 51 (2) of the Charter), so the undertaking by the Union to observe the European Convention on Human Rights does not create any new competences or tasks for it, nor will it affect the existing division of competences between the Union and the member states.”

This position is also that of the European Convention’s Working Group II on the EU Charter and accession to the ECHR in 2002-03.Note Of course, in order to alleviate any fears that the doctrine of positive obligations would result in an extension of the competences of the Union beyond the principle of attribution (that is to say, beyond the competences already attributed to the Union by the member states), certain safeguards can be imagined. The most important of these is to provide that in all cases where the application is filed against an EU member state and/or against the Union, the Union or (when the application is filed against the Union) any EU member state should appear as co-defendant before the European Court of Human Rights and they would be jointly responsible for the implementation of any judgment finding a violation. This mechanism would also ensure that the principle of autonomy of the EU legal order is preserved, since the determination of which entity is responsible for the implementation of the judgment will be decided according to procedures internal to the EU legal order itself, under the ultimate supervision of the Court of Justice.

ii. The status of the ECHR in EU law following accession

The memorandum, perhaps wisely, is silent about the status that will be accorded to the European Convention on Human Rights in Union law following accession. This may be adequate, since this is a question for Union law to decide upon. However, on the other hand, in order to avoid certain mistaken assumptions about what would follow, for both the European Union and its member states, from the Union’s acceding to the ECHR, certain clarifications could be brought.Note According to the case law of the Court of Justice, the provisions of international agreements concluded by the Union and the acts adopted by the organs set up under such agreements “from the time of their entry into force form an integral part of the Community legal order”.Note The result is that the legislation of the Union, like the national laws of the member states, must take into account the provisions of such agreements, the Court of Justice having the jurisdiction to ensure that they are respected.Note The manner in which the national legal order of each member state defines its relationships with public international law is in this respect immaterial: uniform application of the agreement throughout the Union rules out the ability of each member state to view the effects of an international agreement in terms of its own national law. The Court of Justice indicated in the Kupferberg judgment of 26 October 1982 that this was the result of the Community nature of the provisions contained in an international agreement concluded by the Community, which, from the time of its entry into force, becomes part of Community law. The uniform application throughout the Community of the provisions of such an international agreement exclude that their effects can be made to vary according to whether their application is a matter, in practice, for the Community institutions or for the member states, and, in the latter case, according to the attitude of each state towards the effects recognised by the international agreements.Note In order for an international agreement concluded by the Union to produce direct effects – giving litigants subjective rights which they can invoke before their national authorities or before a Community court – “the spirit, the economy and the terms” of the agreement must be examined.Note The European Convention on Human Rights will be recognised this effect in EU law.

iii. The question of the external competences of the Union

In paragraph 17, the memorandum states the following:

“The Court of Justice’s Opinion No. 2/94 of 28 March 1996, holding that the EC did at the time not have the necessary competence to accede to the ECHR, may not be an insuperable obstacle. More than ten years have passed since it was given, during which time the political climate and legal interpretations concerning this issue have significantly changed, suggesting that if the Court of Justice were to revisit the question again today, it may come to an altogether different conclusion.”

It is a matter of political judgment whether or not it is opportune for the Parliamentary Assembly of the Council of Europe to take a position about what constitutes, in the final instance, a question of interpretation of Union law. However, if this argument is indeed put forward, perhaps it could be made more concrete, by referring to the signature of Protocol No. 14 amending the European Convention on Human Rights, which provides that the Union can accede to this instrument.Note Although Protocol No. 14 is still not in force and although its significance with regards to the accession of the Union to the European Convention on Human Rights is political rather than legal, since a subsequent modification of the European Convention on Human Rights defining the practical details of the Union’s accession to this instrument will in any case be required,Note the agreement on the text of this protocol demonstrates a strong political consensus, within the member states of the Council of Europe, including all the EU member states, to the accession of the Union to the Convention. This background may indeed influence the interpretation of the external competences of the Union by the Court of Justice, if and when it is asked to deliver an opinion on this question.Note Emphasising the significance, at political level, of the adoption of Protocol No. 14 to the ECHR may be more advisable than to propose an interpretation of Union law.

At a more fundamental level, I have taken the view elsewhere that the adequacy of the classical case law of the Court of Justice on the extent of the Community’s external powers would deserve to be challenged, where the question of accession to an international instrument protecting human rights is raised.Note By acceding to such instruments protecting human rights the states parties undertake to respect certain minimum standards for the benefit of the people under their jurisdiction, which implies in the first place that they will not adopt any measures that violate these standards. In so far as the undertaking is purely negative (formulated as an obligation to abstain from), it is irrelevant whether or not the parties have the competence to take measures that implement the given standard. It is only where the undertaking is also to adopt certain measures – to fulfil positive obligations (to act) – that the question of competences may play a role. The accession of the Union to international instruments adopted in the field of human rights therefore does not necessarily have to have an impact on the extent of its competences; quite the contrary: such accession must in principle be considered neutral from the point of view of the division of competences between the Union and the member states.Note It is anticipated, in fact, that a specific clause will recall this neutrality, both in the protocol to the ECHR providing for the accession of the EU and in the accession treaty, and in the Treaty on European Union as revised by the Reform Treaty.Note This, however, results from the very principle of attributed competences, according to which the Union cannot exercise competences that it has not been attributed by the member states, even for the sake of better complying with obligations the Union has contracted on the international level.

VI. Other Council of Europe instruments

The committee should consider whether reference should be made, alongside the accession of the Union to the ECHR, to its accession to other international or European human rights instruments. Commenting on Article 9, paragraph 2, of the 2004 Treaty establishing a Constitution for Europe, which attributed the Union the competence to accede to the ECHR, the report on the situation of fundamental rights in the Union in 2004 prepared for the EU Network of Independent Experts on Fundamental Rights insisted that this provision should not and could not be interpreted a contrario:

“… the Union can accede to other international instruments for the protection of human rights.Note Such accession may be considered where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Constitution, or is provided for in a legally binding Union act, or is likely to affect an internal act of the Union.Note For example, the Union may accede to international conventions providing for the elimination of racial discrimination (Convention on the Elimination of All Forms of Racial Discrimination (CERD)),Note discrimination against women (United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)),Note promoting and protecting the rights of persons with disabilities or guaranteeing the status of refugees,Note in so far as it has already adopted important measures in those areas within the Union. Similarly, the importance of European secondary law in the areas covered by the European Social Charter concluded in Turin in 1961 and the revised European Social Charter of 1996Note could justify the accession of the Union to the latter instrument. This is in keeping with a development which not only acknowledges that the Union is a subject in international law, but also infers the international authority of the Union from the range of competences that have been conferred upon it by the member states and which it has exercised.”

After referring to the accession of the European Union to the ECHR, “The guidelines on the relations between the Council of Europe and the European Union” (Appendix 1 to the Action Plan adopted by the heads of state and government of the member states of the Council of Europe, meeting in Warsaw on 16 and 17 May 2005, CM(2005)80 final, 17 May 2005), states that: “Taking into account the competences of the European Community, accession to other Council of Europe conventions and involvement of Council of Europe mechanisms should be considered on the basis of a detailed review”. The Parliamentary Assembly might wish to reaffirm this as a mid-term goal.

VII. Conclusion

In sum, my proposals are the following:

a. the memorandum should be amended to take into account the political agreement reached on the text of a draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community (draft Reform Treaty). In particular:

  • the memorandum could express its concern that, according to Article 188n, paragraph 8, second sub-paragraph, of the proposed Treaty on the Functioning of the European Union, the conclusion of an agreement on the accession of the EU to the ECHR is treated as a constitutional question, requiring that each member state ratifies the agreement prior to its entering into force;
  • the memorandum could confirm the view, which is that of the overwhelming majority of jurists, that the European Union in the present situation already has an international legal personality and the capacity to conclude international agreements;
  • the memorandum could refer to the fact that, under the current EU/EC treaties, the legal protection of the individual may be insufficient, and his or her right to an effective remedy may not always be fully complied with, but welcome the fact that this situation will be significantly improved by the Treaty amending the Treaty on European Union and the Treaty establishing the European Community. It could remark in this respect that, while the improvement of the remedies available within the legal order of the European Union ensures that, in the vast majority of situations, any alleged violation of ECHR rights will be addressed within the EU legal order and according to legal procedures established by the EU treaties themselves, there remains a distinct advantage in organising an external judicial supervision of the compliance with human rights and fundamental freedoms;

b. the memorandum could strengthen its case in favour of accession of the European Union to the European Convention on Human Rights by mentioning the difficulties raised in the execution of the judgments of the European Court of Human Rights in cases involving Union law;

c. the memorandum could address more precisely the implications of the principle of autonomy of the European Union legal order. In particular:

  • the memorandum could express the view that the reference to the “specific features” of the Union in the draft Reform Treaty should not be interpreted to preserve the doctrine of “equivalent protection”, currently relied upon by the European Court of Human Rights when it examines the compatibility of ECHR requirements and measures adopted by the EU member states when they implement Union law. This expression should only refer to the need to organise the processing of applications filed against the EU member states and/or the European Union, in order to take into account the characteristics of the division of competences between them which, in accordance with the principle of autonomy of the Union legal order, should be a matter resolved by Union law alone, under the supervision of the Court of Justice. It should not serve to otherwise preserve some form of “extra-conventionality” of the Union. Any attempt, in the negotiation of the accession treaty (or of a protocol to the European Convention on Human Rights providing for the accession of the EU), to restrict the degree of scrutiny that the European Court of Human Rights will be allowed to exercise on the European Union should be firmly opposed;
  • no proposal should be made to insert an explicit provision into the Court of Justice and Court of First Instance (CFI) rules of procedure, similar to Article 6 of the Agreement creating the European Economic Area, stipulating that EU/EC law should “without prejudice to future developments … be interpreted in conformity with the relevant rulings” of the European Court of Human Rights. Such a proposal would raise fears about the impact of accession on the principle of autonomy of the legal order of the Union. It is up to Union law to decide how – according to which horizontal division of tasks between the institutions and vertical division of competences between the EU member states and the Union – the obligations resulting from the accession of the Union to the ECHR should be implemented in the EU legal order. It may not be appropriate for the Parliamentary Assembly of the Council of Europe to prejudge the measures that will be taken, within the EU legal order, for that purpose;
  • the memorandum should clarify why the imposition of positive obligations on parties to the European Convention on Human Rights would not result in the accession of the Union’s threatening the autonomy of the Union legal order, since the identification of whether the Union or its member states should take action in order to fulfil those obligations will remain a matter for Union law alone to decide, under the supervision of the Court of Justice;

d. the memorandum should reaffirm that, taking into account the competences of the European Union, accession to Council of Europe conventions other than the European Convention on Human Rights and involvement of the Union in Council of Europe mechanisms should be considered.

Appendix to the contribution by Mr De Schutter – The contentious implementation of the Matthews judgment

When the 2002 Council Decision was adopted, amending the 1976 Act (Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 amending the Act concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom, OJ L 283 of 21 October 2002, p. 1), the following declaration of the United Kingdom, reflecting a bilateral agreement concluded between that member state and the Kingdom of Spain, was formally recorded in the minutes of the Council meeting of 18 February 2002:

“Recalling Article 6 (2) of the Treaty on European Union, which states that the Union shall respect fundamental rights, as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the member states, as general principles of Community law, the United Kingdom will ensure that the necessary changes are made to enable the Gibraltar electorate to vote in elections to the EP as part of and on the same terms as the electorate of an existing United Kingdom constituency, in order to ensure the fulfilment of the United Kingdom’s obligation to implement the judgment of the European Court of Human Rights in the case of Matthews v. the United Kingdom, consistent with the law of the European Union.”

The European Parliament (Representation) Act 2003 (EPRA 2003) adopted by the United Kingdom, however, provided (under Section 15) that all residents of Gibraltar above 18 years of age who were either a qualifying Commonwealth citizen or a citizen of the EU would be allowed to vote in the European Parliamentary elections. Spain considered that, by extending the right to vote in European Parliament elections, as provided for by the EPRA 2003, to persons who are not United Kingdom nationals for the purposes of Community law, the United Kingdom had violated its obligations under Community law. In July 2003, Spain therefore filed with the Commission a complaint pursuant to Article 227 of the Treaty establishing the European Community against the United Kingdom with a view to the Commission bringing infringement proceedings against the United Kingdom before the Court of Justice because of the alleged incompatibility of the EPRA 2003 with Community law. The Commission denied this request, stating that Annex I to the 1976 act must be interpreted in the light of the European Convention on Human Rights and that it is sufficiently open to enable the United Kingdom to include the Gibraltar electorate in the United Kingdom’s electorate in European Parliamentary elections, according to its national electoral system.

Spain then chose to file a direct action against the United Kingdom, alleging that the United Kingdom had violated its obligations under EC law by extending the right to vote in European elections to the residents of Gibraltar, who are not citizens of the United Kingdom. The Court of Justice rejected this claim in a judgment of 12 September 2006 (Case C-145/04, Kingdom of Spain v. the United Kingdom of Great Britain and Northern Ireland). It took the view that “in the current state of Community law, the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each member state in compliance with Community law, and that Articles 189 EC, 190 EC, 17 EC and 19 EC do not preclude the member states from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory”. As to the argument that the United Kingdom would be in breach of Annex I to the 1976 act and of the declaration of 18 February 2002, the Court of Justice considered that, in the light of the judgment of the European Court of Human Rights in Matthews v. the United Kingdom, “the United Kingdom cannot be criticised for adopting the legislation necessary for the holding of such elections under conditions equivalent, with the necessary changes, to those laid down by the legislation applicable in the United Kingdom” (paragraph 95).

Reporting committee: Committee on Legal Affairs and Human Rights.

Reference to committee: Doc. 11001 and Reference No. 3272 of 2 October 2006.

Draft resolution and draft recommendation adopted by the committee on 6 March 2008 with 1 vote against.

Members of the committee: Mrs Herta Däubler-Gmelin (Chairperson), Mr Christos Pourgourides, Mr Pietro Marcenaro, Mrs Nino Nakashidzé (Vice-Chairpersons), Mr Miguel Arias, Mr José Luis Arnaut, Mr Jaume Bartumeu Cassany, Mrs Meritxell Batet, Mrs Marie-Louise BemelmansVidec, Mrs Anna Benaki, Mr Luc Van den Brande, Mr Erol Aslan Cebeci, Mrs Ingrida Circene (alternate: Mr Boriss Cilevičs), Mrs Alma Čolo, Mr Joe Costello (alternate: Mr Terry Leyden), Mrs Lydie Err, Mr Valeriy Fedorov, Mr Aniello Formisano, Mr György Frunda, Mr Jean-Charles Gardetto, Mr József Gedei, Mr Valery Grebennikov, Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin Hajiyeva, Mrs Karin Hakl, Mr Andres Herkel, Mr Serhiy Holovaty, Mr Michel Hunault, Mr Rafael Huseynov, Mrs Fatme Ilyaz, Mr Kastriot Islami, Mr Željko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques, Mr Karol Karski, Mr András Kelemen, Mrs Kateřina Konečná, Mr Nikolay Kovalev (alternate: Mr Yuri Sharandin), Mr Eduard Kukan, Mr Oleksandr Lavrynovych, Mrs Darja Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger, Mr Humfrey Malins (alternate: Mr Christopher Chope), Mr Andrija Mandić, Mr Alberto Martins, Mr Dick Marty, Mr David Marshall, Mrs Assunta Meloni, Mr Morten Messerschmidt, Mrs Ilinka Mitreva, Mr Philippe Monfils, Mr Felix Müri, Mr Philippe Nachbar, Mr Fritz Neugebauer, Mr Tomislav Nikolić, Mr Anastassios Papaligouras, Mr Ángel Pérez Martínez, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr John Prescott, Mr Jeffrey Pullicino Orlando, Mr Valeriy Pysarenko, Mrs Marie-Line Reynaud, Mr François Rochebloine, Mr Francesco Saverio Romano, Mr Paul Rowen, Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Ellert Schram, Mr Christoph Strässer, Mr Mihai Tudose (alternate: Mrs Florentina Toma), Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Vasile Ioan Dănuƒ Ungureanu, Mr Øyvind Vaksdal, Mr Egidijus Vareikis, Mr Klaas de Vries, Mrs Renate Wohlwend, Mr Marco Zacchera, Mr Krzysztof Zaremba, Mr Łukasz Zbonikowski, Mr Vladimir Zhirinovsky, Mr Miomir Žužul.

NB: The names of those members present at the meeting are printed in bold.

See 17th Sitting, 17 April 2008 (adoption of the draft resolution and draft recommendation); and Resolution 1610 and Recommendation 1834.

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